Photo finish: infringement claim smacked down

Gordon v. McGinley, 2011 WL 3648606 (S.D.N.Y.)

Janine Gordon, an art photographer, alleged “serial exploitation” of her work by another art photographer, Ryan McGinley. The court dismissed the copyright infringement claims for want of substantial similarity as a matter of law—and it did so quickly; the initial complaint was filed in February and the court ruled in August, not much more than a month after full submissions on the motion to dismiss. (Various state law claims were also dismissed.) The complaint identified 150 allegedly infringing images, though the court only discusses a few.

Substantial similarity isn’t necessarily for a jury. Under Iqbal, it’s possible to find that the works are not substantially similar as a matter of law. The test for substantial similarity is whether an ordinary observer would regard the works’ aesthetic appeal as the same, using the “total concept and overall feel” test, though unprotectible elements can’t give rise to a finding of infringement. Here, “the dictates of good eyes and common sense lead inexorably to the conclusion that there is no substantial similarity.” Rather than conducting an exhaustive inventory, the court focused on a representative sample of the 150 works to “illustrate[] and confirm[]” this holding. (I understand the impulse here, and with 150 works to wade through I can see how a reviewing court would be disinclined to require more. Given that plaintiff herself identified the allegedly worst of the worst, this doesn’t seem to be error, but I’d be hesitant to skip analysis of each allegedly infringed work on its own terms in less extreme cases.)

So, the allegedly most blatant infringement involves two photos “of young men suspended before a cloudy sky, each with his right arm extended and bent at an approximate right angle.” (And here let me commend the court: not only did it include pictures, they’re in color where appropriate. I don’t know whether West will preserve the color in the bound volumes, but the online versions retain it.) “But there the similarity ends. The Gordon Image is black and white and vertical, while the McGinley Image is in full color and horizontal. The Gordon figure is clothed in a short-sleeve T-shirt, dark pants, and tennis shoes; his hair is closely shorn. The McGinley figure is clothed in a long-sleeve shirt and shorts and is barefoot; his hair is medium-length.” Gordon attempted to obscure these allegedly “peripheral” differences by cropping and rotating Gordon’s image and converting McGinley’s to black and white, but the court found that not even this made the “total concept and feel” similar.


If anyone ever tells you that infringement analysis can be done without aesthetic judgment, quote this passage:

The Gordon figure is muscular and taut, with not one but both arms splayed in a gesture of virile triumph. The look on his face is intent, perhaps even defiant. The McGinley figure is slender and his posture relaxed, with both legs floating apart rather than clenched together. His head drapes to one shoulder and a dreamy look inhabits his face as he falls through the frame. Thus, the overall feel of the McGinley Image is that of a passive figure simply surrendering to gravity, while the overall feel of the Gordon Image derives from a dynamic figure jumping into the frame.

There was thus an utter lack of similarity between the photos, with no dissection required.

The remaining comparisons were “even less compelling.” Gordon had a picture of a stunt biker with his motorcycle and McGinley had one of two nude models on roller skates, both engulfed in smoke. Once again, Gordon manipulated the images, flipping McGinley’s horizontally and superimposing color-coded outlines of supposedly corresponding shapes. Even granting the “dubious analogy” between the motorcycle and the crouching roller skater, the relationships between the figures were distinct and the roller skater was facing the camera and smiling while the stunt biker appeared in silhouette, his face concealed. No reasonable jury could find substantial similarity.

The court was unimpressed by Gordon’s consistent alterations of the images, and also by her “strained image descriptions.” For example, she alleged that McGinley’s photo of a nude female pelvis with a tarantula over the belly button infringed her photo of a nude female pelvis with hair draped over the shoulder and covering the abdomen. In her photo, the model was standing against a black background with her hands on her hips, while in McGinley’s, the model was reclining against a light background and her arms weren’t visible. Gordon argued that this was infringing because her model had “long spidery hair.” However, in an infringement case, the works themselves supersede and control contrary descriptions. (I think this is less true than courts wish it were, but in extreme cases like this the divergence between work and description is easy to catch.) “Thus, simply assigning creative adjectives to features of a photograph cannot manufacture substantial similarity where none exists.”

The court found the flaws in Gordon’s case “perhaps best illustrated by her allegation that three separate McGinley Images infringe the same Gordon Image, albeit for slightly different reasons.” Gordon’s photo “depicts a crowded street scene in which a central figure gazes skyward while seemingly restraining a throng of young men with his outstretched arms.” McGinley’s images each show a single figure against a studio backdrop or a clouded sky. Despite the outstretched arms and opened mouths and/or upturned faces, the total concept and feel of each image “wildly diverges” from that of Gordon’s. “The Gordon figure acts in response to the crowd behind him, his arms reaching across the bodies of his companions in a gesture of restraint. By contrast, the figures in the McGinley Images are conspicuously alone.” One “captures a moment of private enchantment at sunset. The model spreads his (or her) arms in a gesture of silent rapture; a falling leaf lingers at the bottom of the frame.” Another creates “a silhouette that is both stylized and vaguely cruciform.” Another features a model who “extends his arms behind his body, as if to propel himself into flight. A solitary shadow fills the corner of the frame.” None of these “captures or even echoes the responsive contact or the urban grit that characterize the corresponding Gordon Image.”



Moreover, 39 of the allegedly infringing images were screen grabs from videos rather than still photos. One pair of photos depict two interracial couples kissing. “In both images, a black man in the right half of the frame kisses a white woman in the left half of the frame. The faces of the couple in the Gordon Image are hidden from view, while the faces of the couple in the McGinley Image appear in full profile, with the arms of the woman stretched overhead.”
The McGinley image was from “Levi’s America,” a video montage of black-and-white footage “of rural and urban Americana” featuring a “solemn and sonorous voice reciting the Walt Whitman poem ‘America,’ as each word or phrase flashes on screen. The allegedly infringing McGinley Image appears at the 51–second mark, spliced between video of a shadowy figure standing on a wooden post and a shirtless adolescent leaping through the spray of sparks from a firecracker.” The allegedly infringing image “is derived from a wholly dissimilar and dynamic medium, in which camera angles, lighting, and focus are changing at a rate of 29.4 frames per second.” The court was skeptical that a single frame from a work containing more than 1700 discrete images could support a claim of infringement of a still photo.

Quoting Mannion v. Coors Brewing Co., 377 F.Supp.2d 444 (S.D.N.Y.2005), Gordon argued that the photograph-video comparison was permissible because “a photographer's ‘conception’ of his subject is copyrightable.” But the “conception” is not the idea of an interracial kiss, but instead originality in rendition, timing, and creation of the subject. Neither the timing nor the creation of the subject here were original to Gordon, and “the static rendition of the Gordon Image bears no likeness to the pace and pulse of the corresponding McGinley work.” In a footnote, the court noted that a recent decision identified substantial similarity between a music video and a still photograph based on a determination that “both works share the frantic and surreal mood of women dominating men in a hyper-saturated, claustrophobic domestic space.” LaChapelle v. Fenty p/k/a/ Rihanna, No. 11 Civ. 945(SAS) (S.D.N.Y. July 20, 2011). Here, the court was “ultimately unpersuaded” by LaChapelle’s analysis, but in any event the images at bar were so obviously dissimilar at to make that case entirely irrelevant.

“In lieu of identifying substantial similarities in the allegedly infringing images,” Gordon offered affidavits by various artists, curators, and critics and claimed that the expert consensus is that McGinley’s work is not original and that his photos are derived from Gordon’s. This was unhelpful, since the Second Circuit limits the use of expert opinion in determining substantial similarity. Moreover, the affidavits’ substance highlighted the problem with Gordon’s claim: several experts thought that Gordon should win even though they knew nothing about copyright. One opined on the contours of “fine art ethics” and acknowledged that art expertise “may be needed” to discern the relationship between the images at issue.

“[T]he remedy for the instant dispute lies in the court of public or expert opinion and not the federal district court…. The fact that McGinley's works may be ultimately derivative and unoriginal in an artistic sense—something which the Court has neither the expertise nor inclination to pronounce upon—is beside the point.” Most ads are derivative in that sense, and not all copying is copyright infringement.

Perhaps setting up for a fee award—which would be well justified, in my opinion—the court pointed out that Gordon’s theory

would assert copyright interests in virtually any figure with outstretched arms, any interracial kiss, or any nude female torso. Such a conception of copyright law has no basis in statute, case law, or common sense, and its application would serve to undermine rather than promote the most basic forms of artistic expression. One might have hoped that Plaintiff—an artist—would have understood as much, or that her attorneys, presumably familiar with the basic tenets of copyright and intellectual property law, would have recognized the futility of this action before embarking on a long, costly, and ultimately wasteful course of litigation in a court of law.